In our previous post, Thomas argued that voter feedback is weak in constraining the exercise of legislative power. Chidem countered that the other fundamental constraint, the constitution, is therefore all-important. Commentators were divided, with cogent arguments pro and con. We continue this discussion.

Chidem: Constitutionalism is the idea of subjecting political power to rules that stand above that power. The concept took a long time to develop and became effective only in some societies. Its roots go back to the Magna Carta of 1215 in which King John of England accepted limits to his authority and an earlier Charter of Liberties. Today’s struggles about the US Constitution are but another chapter in this long history.

Public choice pioneer and Nobel-prize winner James Buchanan powerfully made the constitutionalist case. Geoffrey Brennan and Buchanan offer this definition in The Reason of Rules (1985): “the essence of the constitutionalist approach is that political action (including the making of laws) be conducted according to certain rules (or meta-rules).”

In the alternative view, majority voting is the ultimate source of morally legitimate political power and there should be no constraints on it. Buchanan and Roger Congleton (Politics by Principle, Not Interest, 1998) argue that in the absence of meta-rules politics devolves into majority-seeking deals where some benefit at the expense of others.

The main practical objection against constitutionalism is that it does not work. The US Constitution does not stop myriad impositions by the politically powerful on the politically weak. The country is arguably not far away from the non-constitutional endpoint Buchanan and Congleton warn against, when “The Hobbesian warre is simply transferred to the realm of institutionally organized conflict.”

Effective constitutions don’t come out of nowhere; they emerge because many people think that way. “Without a shared ‘constitutional mentality’ … all argument on design comes to naught. Persons must be cognizant of the reason of rules …”, according to Brennan and Buchanan. Compared to this, whether a constitution is written or not and the exact form it takes are secondary matters. The UK and the US, where a constitutional mentality took root, were bastions of freedom compared to other countries.

While subject to erosion like all institutions, constitutions are the only tool humanity has developed to control political power—and it took millennia to get there. As we saw, voting is a weak constraint. If you reject meta-rules for political action, then everything goes. There is no framework for even trying to restrain the war of interests.

There is the notion that people will someday, somewhere learn to live without government and therefore without a constitution. Maybe on a planet far, far away, intelligent beings will figure a new way to govern themselves and stay free. Good for them.

For us, without an effective constitution we’re left totally at the tender mercy of absolute power, whether of King John or pork-trading majority coalitions.

Thomas: One problem is that, contrary to constitutionalist hopes, constitutional rules don’t really stand above political power. They bend to it. That is why the most successful constitution to date, the US one, has been unable to withstand erosion, as you note. The power to regulate commerce among the several states has blossomed into the power to regulate anything in the economy, since the economy in principle knows no state boundaries. The requirement to provide for the general welfare is an open invitation to define, to one’s own conceptions, what the general welfare consists of. And so on.

Buchanan (Freedom in Constitutional Contract, 1977) ascribes the trend to “pragmatic drift” brought about by short-sighted tampering, but gives no real reason why an exponent of constitutionalism would be able to write a better constitution, less prone to eventual erosion than the one we have. His only antidote for drift is a combination of “education” (with a view to inculcating a “constitutional attitude”) and the reemergence of a willingness to undertake the rigors of constitutional reform.

But any society-wide structure which relies on the participants’ intelligence, far-sightedness or public-spiritedness for its stability is doomed to collapse.

While there is much scope for criticizing constitutionalism empirically, I think a deeper problem is that it has a fundamental conceptual flaw. Its constraints are intended to limit the scope of legislation, but not to change the character of legislation as fixed universal rules. As such it is part of a centralized arrangement for the production of rules whose application is one-size-fits-all.

This is in contrast with an adaptive system of customary law, a decentralized arrangement allowing for local experimentation and effective feedback, a complex of procedures whose emergent restraints cannot be implemented directly simply by specifying a list of declarative rules. Your claim that without constitutional rules there can be no framework for restraint ignores this third possibility.

Agreed, it is not an existing possibility. Constitutions, like all of the current mechanisms of centralized power, cannot simply be done away with, but – if we don’t want either worse tyranny or chaos – will have to be gradually superseded by the growth of decentralized arrangements.

One reason for engaging in social theory is to understand the possibilities that could be, and not to assume that our current best efforts at constraining coercive power are necessarily the best possible and that anything else is science fiction.

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34 thoughts on “Constitutionalism: Point/Counter-Point”

It is true that constitutions only have the strength and the staying power of the citizens who live under it, and understand and support its underlying principles and ideas.

For more than a century, now, the political drift has been away from the earlier conception and belief in a variety of “inalienable rights” that a constitution was to protect from violation and abuse from the passions and emotions of the moment, which could include a desire to make other citizens conform to forms of conduct they peacefully chose not to.

Historicism and positivism in their various forms began to weaken that earlier belief, with the only ideology that remains being a vague notion of “democracy” as “freedom” and that law should reflect “the people’s” and the “community’s” will.

But, nonetheless, the implementation of this American constitution, and the “reverence” which for so long it was held as an embodiment of a noble idea and the wisdom of those Founding Fathers has served as a “break” on that drift to democratic despotism and the political “class” that claims authority to rule and redistribute in the name of the “common good” and “general welfare.”

Economic liberty has suffered the most, in general, from this drift. But the “sacredness” of the first amendment of the Constitution has acted, nonetheless, as a bulwark to delay a similar erosion of many of our personal and civil liberties, even though there are many who for one reason or another would have liked to weaken or restrict other people’s personal and civil liberties over the years.

The cultural legacy and the legal institution of the Constitution gives us the “intellectual space” to try to stop and even reverse the current trends.

For this reason the Constitution has served an invaluable historical role, and still continues to slow down the implementation of that “vision of the anointed” to which Thomas Sowell has referred.

Might one not be able to develop a Constitution that is more explicit on things like equality under the law, rule of law, decentralization, the limits of legislation, etc. that reinforces the spontaneous order of customary law, while restricting the kinds of legislation that can be developed? I htink Chidem is right about one thing: no constitution can last without there being a constitutional culture. That doesn’t require that people be smarter, better, etc., only that they be part of a culture that accepts that there should be self-rule and thus limits on those in government. My ideal would be for the cmopletely decentralized spontaneous order, of course — but we have to take human nature into consideration, and figure out how we can defang the worst elements of it, and perhaps even channel it to peoples’ benefit.

“The analogy with states and their constitutions is distorted by the bindings. Once bound, Ulysses cannot undo his shackles. Only his shipmates can release him. A state bound by a “law of laws,” being at the same time the monopolist of all law enforcement, can always untie itself. It would not be sovereign if it could not. The proper analogy is not with Ulysses and his shipmates approaching Scylla and Charybdis, but with the lady whose lord, reassured by her chastity belt, is safely off to the wars, while she, now mistress of herself, hangs the key of the padlock of the belt on her own bedpost.” -Anthony de Jasay

While that is a poetic quote, an explicit purpose of most constitutions is to break government into competing interests — to set ambitions against one another, as it were. The specific forms of governmental institutions is vital for this reason. The U.S. has a long history of competing political interests tying the ambitions of government. Is it not often observed that when the U.S. government is divided that it governs best?

Troy, isn’t that what successful decentralized orders (e.g. markets, sciences) are observed to do well: take human nature into consideration, defang the worst elements of it, and channel it to peoples’ benefit?

“Economic liberty has suffered the most, in general, from this drift. But the “sacredness” of the first amendment of the Constitution has acted, nonetheless, as a bulwark to delay a similar erosion of many of our personal and civil liberties, even though there are many who for one reason or another would have liked to weaken or restrict other people’s personal and civil liberties over the years.”

Economic liberty has suffered the most from the drift away from inalienable liberties.
But this drift was preordained in article 1, section 8, of the Conjob, which I call the monopoly clause. Mix that with usurper-legislators, “activist” judges, rent-seekers, and voters, and over time it was going to happen.
How much of a bulwark against despotism has the first amendment been to, say, drug dealers locked up for years in prison? How much did it help the guy in Texas who was just released for serving 27 years–27 years!–for a rape he didn’t commit? Well, okay, the Taliban would have executed him and the woman he raped, but what about the rest of the world? 27 years?
The Economist had a good article recently on how more criminals get locked up in the U.S. (and for longer sentences) than the rest of the world. Some of them might deserve their sentences, but many don’t.
The main problems I have with the first amendment are that (1) it fosters the myth that free speech is something granted by the farethewell of the State; and (2) speech is somehow different from and “better” than other forms of liberty, including economic liberty, the right to own property, and to exchange property titles.

Count me a Spoonerite when it comes to the first amendment and the rest of the Conjob.

It seems irresistible not to link to this op-ed in which Roderick Long argues that anarchism *is* a kind of constitutionalism, so that the two alternatives under review here need not be seen as antithetical:

Professor Ebeling,
Re “the sacredness” of the first amendment of the Constitution has acted, nonetheless, as a bulwark to delay a similar erosion of many of our personal and civil liberties”
Very well put. And its importance can’t be denied when you look at societies that lack this protection.

Troy,
“Take human nature into consideration, and figure out how we can defang the worst elements of it, and perhaps even channel it to peoples’ benefit.” That’s been the constitutionalist object. However, 20th century attempts to try to design optimal constitutions for developing countries have generally failed. It seems the issue of constitutional culture is paramount.

Bill Stepp,
Re your objection that the first amendment fosters the idea that “speech is somehow different from and “better” than other forms of liberty, including economic liberty, the right to own property, and to exchange property titles.” Interesting point.

There are societies — China in particular comes to mind — where the political system has granted some measure of economic liberty but not freedom of expression. Since economic liberty creates affluence, one can see why an authoritarian government would promote it (to some extent) while at the same time suppressing freedom of expression, which can pose a political threat. This suggests why freedom of expression requires strong protection–governments are especially likely to attack it.

I don’t disagree that there have been a variety of civil liberty violations, as well as reductions in our economic liberty.

But the question is, would we have been freer if there had not been a first amendment to the Constitution?

And if you reply that we’d be better off without the Constitution, I would suggest that given the ideological drift in the West in general over the last one hundred plus years, I would counter suggest that we’d be a lot less free without it.

(I am very sympathetic to the philosophical concerns of the Anti-Federalists who challenged the case for ratification of the Constitution in the 1780s. But I’m not persuaded that if we had stayed under some version of the Articles of Confederation the several states would not have ended up in trade and even, perhaps, real wars with each other. And that civil and personal liberties would have been oppressed in different ways at the state levels.)

The world is not ready for the stateless society (if it ever will be) because people everywhere are not mature and philosophically sophisticated enough to successfully live in a truly voluntarist social order.

For a long time, the most we can hope for is the type of political constitutional order that restrains the power of the state, based on convincing enough of our fellow human beings there are aspects of their life — personal, social, commercial — that neither ideological elites nor changing majorities should interfere with.

Our problem is one that Herbert Spencer understood in the 1880s and expressed during a visit to the United States:

“The fact is that free institutions can be properly worked only by men, each of whom is jealous of his own rights, and also sympathetically jealous of the rights of others—who will neither himself aggress on his neighbors in small things or great, nor tolerate aggression on them by others. The Republican form of government is the highest form of government; but because of this it requires the highest type of human nature—a type nowhere at present existing. We [the British] have not grown up to it; nor have you [the Americans].”

And he said this at at time when more people in Britain and America than today had a clearer appreciation and understanding of the classical liberal ideal for society.

Bill Stepp,
“Count me a Spoonerite”
Lysander Spooner argued (in the late 19th century) that the Constitution died with the generation that wrote it, since the contract expired with their demise. Every once in a while somebody picks up this intellectual curiosity.

A constitution that expires with every change in generation is, of course, not worth the paper it was written on.

Richard, I’m puzzled by your claim that “The world is not ready for the stateless society (if it ever will be) because people everywhere are not mature and philosophically sophisticated enough to successfully live in a truly voluntarist social order”.

If a decentralized legal order depended for its functioning on the maturity and philosophical sophistication of its participants, then it would, indeed, be a utopian dream.

The world doesn’t have to be “ready”; the supporting institutions have to be entrepreneurially planted in order to grow. I agree that’s a significant hurdle, but it’s not the same one you are hypothesizing.

Thomas, while as you say markets function without mature and philosophically sophisticated participants, markets do need property law, courts and other institutions to function well. As I understand it, your argument is that spontaneously arising and self-organizing versions of these functions may arise to take the place of government institutions.

They may indeed someday, may we be so lucky, or the beings on that planet far, far away be so lucky. But Prof Ebeling is commenting on current realities.

“For a long time, the most we can hope for is the type of political constitutional order that restrains the power of the state, based on convincing enough of our fellow human beings there are aspects of their life — personal, social, commercial — that neither ideological elites nor changing majorities should interfere with.”

This is not what is difficult to convince our fellow human beings of — almost nobody wants himself to be taxed, regulated, or told what to do. We must convince them of the value of protecting the liberty and property rights of the other guy.

Chidem, I certainly do not deny that markets need law (or that law needs markets, for that matter). But that’s quite beside the point.

My argument is that there are good theoretical reasons to think that there is a third option in addition to centralized legal arrangements and chaos, and further, that such an option would not require as a precondition sophisticated participants but would require a process of growth from entrepreneurial beginnings. Also, that such a system would be better characterized as an order of customary law, not as a market order, since the basic transactions in such a system would be legal procedures, not exchanges.

I do not assume that it would just happen all by itself, as it were — the term “spontaneous” is somewhat misleading in that it might be taken to imply that there are no preconditions for the formation of such a non-market order; that it might happen by luck, say.

It is not a prediction. It has nothing to do with luck. And I think you should let Richard defend himself.

Constitutions imposed on cultures always fail because they did not emerge naturally. One has to have the culture before one has the constitution. Constructivism fails. Always. It is unnatural and inhuman.

True, Troy, very true. Never stops people from trying, though. You yourself are proposing all sorts of constitutional reforms — and they certainly sound good & reasonable to me — that one could argue approaches on constructivism.

I disagree. My recommendations are 1) well within the traditions of our constitutional culture and, therefore, 2) act as eminent criticism. Thus I am acting within the spontaneous order and not outside of it, trying to impose something from the top-down.

“Living Constitution” adherents and other proponents of constructivism often appeal to the claim that the U.S. Constitution is an example of constructivism. It is no such thing. The U.S. Constitution evolved out of the centuries-long tradition of English constitutionalism, with its basis in the common law and a recognition of individual liberty and inalienable individual rights, including the right to private property. The fact that a handful of leading men collaborated on its composition does not contradict this, because the ideas on which they based it were not invented by them out of whole cloth, and they adapted existing institutions with long historical records of effectiveness. This is precisely the type of spontaneous order that Thomas McQuade is arguing for, as I understand him. And so Troy is quite right in defending his recommendations.

James, The fact that intelligent people might come up with a list of declarative statements in an attempt to capture some aspects of the emergent wisdom of an historical process is fine and good and useful; that they attempted to use this list as a vehicle for constraining centralized government was an imaginative and worthy and brave undertaking to which we owe immense gratitude; but for us now to think that the constraining function of this or any similar list (even Troy’s, or Hayek’s) would not eventually erode under the pressure of concentrated interests is to ignore plain evidence.

The theory of complex systems hints at why this may be so. First, the mere fact that we are operating with a centralized power structure results in a dynamic in which the pursuit of self-interest is competition to wield some of that power. Such formal constraints as are provided are weak relative to the positive feedback resulting from success in this competition. In this case, self-interest and competition are not conducive to public benefit, as they are in decentralized systems with strong balancing negative feedback.

Second, and more abstract, is the fallacy of thinking that, because we can capture some of the wisdom of experience in declarative statements, enshrining those statements as static givens from here on will adequately substitute for the dynamic distributed processes that gave rise to that wisdom, or for perhaps other types of transactional arrangements yet to be implemented and tried out.

I hope that makes my position a little clearer. This is a huge and difficult and contentious subject, and hard to adapt to blog format.

Thomas, let me point out the obvious. The “third option” you see, “a system .. better characterized as an order of customary law” did in fact arise. It did not stop the growth of centralized governments. After all, there is a huge body of common law, going back centuries. Whatever advantages it has, it has not become a substitute for centralized government. Therefore, there is no basis in history to sustain the hope that such arrangements will one day emerge as substitutes for government.

Which brings up again the conclusion that there is no alternative to an effective constitution.

Troy, the point I’m trying to make is that the constitution is not like ordinary law, where re-designing to achieve certain practical ends may be useful. The constitution’s power comes from the vision it embodies, a vision that took a very long time to emerge–humanity existed for thousands of years before even the Magna Carta. No doubt designing new constitutional rules is an intriguing intellectual exercise. But it’s the vision’s influence that really matters.

Chidem, history is a guide, but it is not destiny. There once were instances of free banking, but these have been overtaken by central banking regimes. Does this mean that it is futile to point out that, for identifiable reasons, free banking, left to grow, would be a stable arrangement, whereas central banking is inherently unstable? Science was once largely privately funded; now some disciplines are completely supported by public funds. Does this mean that one should not bother pointing out the demonstrable dangers to science itself of public funding? Are we to conclude that, because the Fed and the NSF are the culmination of our particular historical path that there is no possible alternative to them? I’ll spot you the difficulties and unliklihoods in the face of “current realities”, but since I have given reasons why centralized constitutional government is unstable and why its problems could, in theory, be addressed by more decentralized arrangements, I expect you to counter in kind. You don’t have an impossibility argument.

You bring up the common law as our heritage, but I was talking about customary law. I have the impression that you (like Hayek in LLL) do not distinguish between customary law and the varieties of common law. The common law originated as those elements of customary law recognized by the King’s courts. But it has become, since the 1800s, a system in which judges and juries are constrained not by current notions of fairness and reasonable expectation-fulfillment, but by case precedent, and, although so constrained, nevertheless are able to introduce considerations of potential social engineering. Current common law, then, has aspects more akin to legislation than to customary law. So, yes, current common law is indeed, in part, an arm of constitutional government – but customary law it is not. I think there are competing “visions” at play, here.

One can note that some parts of the Constitution have held up better than others. Does the 1st Amendment’s protection of freedom of speech hold up as well as it does only because of the constitutional culture which supports it, or is it also perhaps because it’s one of the places that is about as clear and precise as one could want: “the freedom of speech shall not be abridged”? Other parts of the Constitution, such as the interstate commerce clause, which I am pretty sure was meant to ensure a free trade zone among the states and not infinite power over the economy by the federal government, is sufficiently vague to be interpreted as meaning whatever people want it to mean. Might this not be an argument for clarity? Might one not have a stronger constitutional culture with more constitutional clarity?

“but for us now to think that the constraining function of this or any similar list (even Troy’s, or Hayek’s) would not eventually erode under the pressure of concentrated interests is to ignore plain evidence.”

and now you against yourself: “Chidem, history is a guide, but it is not destiny.”

The Constitution has failed to constrain the growth of government only because it was hi-jacked and distorted to mean something it did not say. This is not inevitable or irreversible, in my opinion. The Constitution held up quite well until about 100 years ago. The impending collapse that will demonstrate the bankruptcy of the progressive gospel can be exploited to effect a return to a constitutional culture. Such a culture would, of course, look substantially different than the 18th-Century one, but the fundamental principles could be much the same. The concepts you describe as contributing to the erosion of the limiting power of the Constitution, now that we are aware of them, could be taken into consideration in the formulation of amendments that could trump decades of liberal jurisprudence. For example, an unambiguous restatement of the role of the federal government in “regulating” commerce, or similarly language that puts a stop to the abuse of the “welfare” clause, could take us far toward restoring the Constitution’s intended function.

James, a friendlier reading of my bloggish polemics would have involved taking into account the context. In the first case, I cited evidence backing up a theoretical claim, discussed in the paragraph directly following the quoted one. In the second case I’m observing that history by itself is simply data, one damn thing after another, and I’m asking for a theoretical framework in which to make sense of it and perhaps to rebut my claims.

Y’all keep insisting that, if we could just get a clearly-worded constitution in place (in the context of a reinvigorated “constitutional culture”), there would be no problem. The minor difficulty I have with that is: what makes you think that what seems clear to you now would still be clear to others in the future, especially with incentives in place to trade on any possibility for reinterpretation? I suspect that Madison et al. thought they were being pretty clear, despite the inevitable compromises – after all, you know what they meant, since you can say that their construct has been “distorted to mean something it did not say”.

The major difficulty is that, though you change the constitutional rules for a centralized government six ways from Sunday, you still have a centralized arrangement vulnerable to the action of self-interest and competition not configured to redound to public benefit.

I’m not saying that it is impossible, in extremely fortuitous circumstances, for the sorts of constitutional adjustments you want to be made. And if that can be done, well and good, I’m all for it; it might stave off the erosion of freedom for a while, even a long while. But it’s a defensive measure, a delaying tactic, not a long-term solution.

Troy–
Re “Might one not have a stronger constitutional culture with more constitutional clarity?”
It’s an intriguing question. One could turn it around and argue that constitutional clarity will emerge from stronger constitutional culture. Therefore, boosting the constitutional culture is the priority. That’s my feeling, but it’s worth thought.

I should add that I’m drawing on James Buchanan’s work in these arguments. For the centrality of vision, see his “The Soul of Classical Liberalism” in The Challenge of Liberty, edited by Robert Higgs and Carl Close (The Independent Institute, 2006). Buchanan argues that a vision of an ideal, over and beyond specific issues and policies, is necessary for wide public acceptance.

Thank you for the clarification. I take it as hyperbole, but you overstate my position when you contend that I say there would be ‘no problem’ if we could only tweak the Constitution. With regard to the problems inherent in a centralized government (even one which the Constitution was intended to limit), is there an alternative arrangement that you would expect to prove more stable? Not being well versed myself in the theory of complex systems, I don’t know what you have in mind here:

“In this case, self-interest and competition are not conducive to public benefit, as they are in decentralized systems with strong balancing negative feedback.”

Also, you seem to be emphasizing the distinction between customary law and common law. is it your contention that customary law has advantages over common law with regard to resisting the erosion of freedom?

Having re-read your original post on this thread, I see that you have already answered my question about customary law. But what would prevent customary law, pursuant to the process of the adjudication of competing claims, from eventually being codified in a list of declarative statements, or in a legal system based on precedent? As I understand Hayek, the characteristic that most recommends constitutionalism is that the nature of “the law,” properly understood (as opposed to legislation), is that it is fixed and universal. People know what to expect, and they buy into the arrangement because (ideally) everyone is treated the same. When these characteristics fail (and your point is well taken that this is all but inevitable, to one degree or another) is when arbitrary power encroaches on liberty.

“At all times friends of freedom have been rare, and its triumphs have been due to minorities, that have prevailed by associating themselves with auxiliaries whose objects often differed from their own; and this association, which is always dangerous, has sometimes been disastrous, by giving to opponents just grounds for opposition.”
— Lord Acton

I agree that an arrangement that requires a populace with wisdom and philosophical sophistication in order to function is a utopian dream. I don’t accept the premise that such a reality is necessary for a constitutional arrangement to serve to constrain the power of government. What is necessary, and I believe possible, is for enough people to come to understand and appreciate that the expansion of central authority costs them much more than they get in return. This is not a sophisticated argument, but it is not likely to gain widespread acceptance as long as education is the province of the state. It is here that I imagine a future where solutions emerge in the market, in response to the failure of public education, and grow to a critical mass great enough to largely displace the established order. The effect of state indoctrination thus weakened, the ground can then be softened for the types of decentralized arrangements you envision to emerge.

James, one would expect that some of the legal knowledge generated in a decentralized legal system would be codified, published, and studied. But not etched in stone. The scientific knowledge codified in textbooks and treatises is not the whole of scientific knowledge; much resides in the techniques and procedures of interacting scientists and is not so codifiable. And the textbooks of today are quite different from those of 100 years ago, although of course some of the basics have not changed. Despite this mutability and tacitness, science can be applied and reasonable expectations fulfilled and, since it is an ongoing discovery process, it is continually adapting to its environment. So it could be with law.

The question of how, and in what circumstances, a decentralized legal system could come about to replace the current mess is impossible to answer satisfactorily. All I can say is that, if an academically useful theory of social arrangements in terms of complex adaptive systems can be developed and can earn wide intellectual acceptance, it could suggest entrepreneurial opportunities for legal professionals, especially in the light of the deterioration of current institutions that you allude to. People in general don’t need to understand much (we’re not talking about political democracy, here), but they do need to be presented with opportunities for their own subjective benefit. And that’s what entrepreneurs are for.

[…] Subjects with knowledge of past liberties seek to restrain those who would rule. This is the Constitutionalist Process. Laws constraining the powerful are erected and eroded. Rebuilt and breached. polished and […]